I am writing on behalf of Lawyers’ Rights Watch Canada (LRWC), a committee of Canadian lawyers who promote human rights and the rule of law through advocacy, education and research. LRWC is an NGO in Special Consultative Status with the Economic and Social Council (ECOSOC) of the United Nations (UN).

LRWC has received an English language translation of your 13 August 2014 letter [pdf] to Mr. Komsan Tongsiri, State Enterprises Workers’ Relations Confederation (SERC) in response to a joint letter of 8 August 2014 (8 August letter) inviting TPIA to encourage Natural Fruit Co. Ltd. (Natural Fruit) to withdraw the law suits against Andy Hall and address allegations of labour rights violations by Natural Fruit.

Your 13 August letter characterizes the criminal and civil law suits brought by Mr. Wirat Piyapornpaiboon, president of Natural Fruit, against Mr. Andy Hall, as a “personal matter.” Criminal prosecutions that result in State-sanctioned restrictions on liberty through bail requirements and which could result in a sentence of imprisonment are a public matter. It is our understanding that the complainant, Natural Fruit can, at this point in time, withdraw the criminal charges against Andy Hall, and TPIA can certainly urge Mr. Wirat Piyanpornpaiboon to do so.

It is apparent that the criminal and civil law suits have been brought against Mr. Hall in retaliation for reports (by Finnwatch and others) of serious labour rights violations by Natural Fruit in order to deter other reporters from exposing wrongdoing. Rather than threaten further retaliatory court actions, it is hoped that TPIA will take action to promote adherence to the law by Natural Fruit and other TPIA members. Such action would include urging Natural Fruit to:

1. withdraw criminal and civil proceedings against Mr. Hall;
2. allow a full investigation by competent and independent investigators of all allegations of unfair and/or illegal labour practices;
3. provide fair remediation of all violations identified by the investigation;
4. introduce, in consultation with workers and their advocates, effective measures to prevent future violations;
5. acknowledge the valuable role of Mr. Andy Hall in reporting on labour rights issues and identifying violations.

Announcement of such measures would be undoubtedly be good for business. An additional benefit of such an independent investigation would be a fair determination of the facts. In this regard, LRWC invites the TPIA to state what investigation it conducted into the facts and which facts alleged in the 8 August letter or in Cheap Has a High Price TPIA believes to be inaccurate.

TPIA’s purposes include “representing the entire industry on national issues.”[1] Allegations of serious ongoing labour rights violations identified in Cheap Has a High Price are of concern to the entire pineapple industry. Allegations include:

involvement in smuggling of undocumented migrant workers into the country ;

child labour; payment below the minimum wage required by the law;

forced overtime;

confiscation of migrant workers’ passports and work permits; and

violence against migrant workers.

Such practices would constitute violations of both Thailand’s domestic laws and international human rights law obligations. To our knowledge, neither Natural Fruit nor Thai authorities have yet conducted thorough and reliable investigations of the alleged violations. Thailand’s inadequate response to reports of human trafficking and forced labour in several commercial sectors, including fruit manufacturing and fishing sectors, has resulted in Thailand’s being downgraded to the lowest possible level in the United States (US) State Department’s 2014 Trafficking in Persons report (TIP report).[2] The TIP report points out that Thailand “does not fully comply with the minimum standards for the elimination of trafficking” (p. 373). The TIP report recommends that the government of Thailand

cease prosecuting criminal defamation cases against researchers or journalists who report on human trafficking; recognizing the valuable role of NGOs and workers’ organizations in uncovering the nature and scope of human trafficking in Thailand, work to establish an environment conducive to robust civil society participation in all facets of understanding and combating human trafficking…[3]

LRWC draws attention to the UN Guiding Principles on Business and Human Rights (Guiding Principles), endorsed by the UN Human Rights Council on 6 June 2011.[4] The Guiding Principles are grounded in the recognition of (among other things) “the role of business enterprises as specialized organs of society performing specialized functions, required to comply with all applicable laws and to respect human rights…” One of the foundational Guiding Principles is that business enterprises “should respect human rights. This means that they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved.” According to the Guiding Principles, such responsibility “exists over and above compliance with national laws and regulations protecting human rights. Addressing adverse human rights impacts requires taking adequate measures for their prevention, mitigation and, where appropriate, remediation.” TPIA is duty bound to promote its members’ compliance with Thailand’s laws, including international laws, protecting human rights and to promote prevention and remediation of human rights abuses.

In a recent statement,[5] LRWC expressed the opinion that the prosecution of Andy Hall is a misuse of the criminal law to punish the peaceful expression of views and information of public interest. LRWC pointed out that the criminal charges against Mr. Hall have been brought under defamation legislation that fails to measure up to international human rights standards. Thailand’s criminal defamation laws provide opportunities for malicious prosecution by persons and corporations wishing to silence critics and thereby continue possibly unlawful activities with no accountability. This view is affirmed by the 2014 TIP report in which the USA states that use of Thailand’s criminal defamation laws “to prosecute individuals for researching or reporting on human trafficking may have discouraged efforts to combat trafficking.”[6]

On 26 April 2013, five UN Special Rapporteurs sent a communication to Thailand expressing concern that

… the criminal charges against Mr. Andy Hall may be the result of his legitimate and peaceful actions gathering and publishing evidence of facts which, if accurate, would amount to serious human rights violations that warrant investigation by the authorities without delay. Further concern is expressed at the possibility that the charges against Mr. Hall may have a chilling effect on other human rights defenders and civil society activists working in Thailand and elsewhere to expose human rights violations perpetrated by non-State actors, including business enterprises.[7]

LRWC also wishes to draw attention to the Declaration on Human Rights Defenders, adopted 9 December 1998 by consensus of the member States of the UN General Assembly[8] which states that “everyone has the right, individually or in association with others, to promote the protection and realization of human rights and fundamental freedoms at the national and international levels” (Article 12.1).

TPIA should engage in dialogue with Natural Fruit and civil society about improved compliance with international human rights standards by Natural Fruit and other TPIA members. The failure by Natural Fruit to investigate or remedy allegations of involvement in serious human rights violations stands in stark contrast to the responses of other industries identified in Cheap Has a High Price as attempting to address the concerns raised. For example, the Thai Frozen Foods Association (TFFA) and the Thai Tuna Industry Association (TTIA) have supported Mr. Hall’s work and have committed to provide bail for him.

In summary, LRWC calls on TPIA to:

urge Natural Fruit to immediately cease all reprisals against Mr. Hall, including the withdrawal of all criminal charges and civil law suits against him;

urge Natural Fruit to address and remedy all concerns raised in Cheap Has a High Price;

urge Natural Fruit to allow a full investigation by independent and competent persons of all allegations of unfair and/or illegal labour practices;

promote among TPIA members, adherence to the UN Guiding Principles on Business and Human Rights[9] by respecting and promoting international human rights law binding on Thailand as well as the UN Declaration on Human Rights Defenders;

engage in dialogue with the human rights defenders and labour organizations that sent the 8 August letter to the TPIA about what constructive investigations and steps it will take to promote among its members full adherence to international human rights law and principles;

provide fair remediation of all violations identified by the investigation;

introduce, in consultation with workers and their advocates, effective measures, to prevent future violations;

acknowledge the valuable role of Mr. Andy Hall in reporting on labour rights issues and identifying violations.

UN General Assembly, Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms : resolution / adopted by the General Assembly , 8 March 1999, A/RES/53/144, available at: http://www.refworld.org/docid/3b00f54c14.html. The Declaration, while not in itself a binding instrument, is based on human rights standards enshrined in other international instruments that are legally binding including the ICCPR. The Declaration was adopted by consensus of the General Assembly and thus represents a unanimous commitment by States to its implementation.

UN Human Rights Council, UN Guiding Principles on Business and Human Rights Implementing: the United Nations